STATE
OF VERMONT WASHINGTON
SUPERIOR COURT
WASHINGTON COUNTY, SS. Civil Action, Docket No.
656-12-03 Wncv
JUDICIAL WATCH, INC.,
Plaintiff
v.
THE
STATE OF VERMONT,
DEBORAH
L. MARKOWITZ,
in her official capacity as Secretary of
State
of the State of Vermont,
GREGORY
SANFORD,
in his official capacity as State Archivist
of the State of Vermont,
and
HOWARD
DEAN, M.D.,
in his capacity as former
Governor
of Vermont,
Defendants
PLAINTIFF’S REPLY MEMORANDUM
IN
FURTHER SUPPORT OF RULE 12(c) JUDGMENT
Defendants are concealing public records. They have failed to meet their burden of
establishing any exemption to disclosure.
For that simple reason, judgment should be granted
in favor of Plaintiff as a matter of law under V.R.C.P. 12(c).
Defendants seek to avoid judgment by fashioning three arguments,
none of which is persuasive, and all of which are easily refuted: first, Defendants argue that
“factual development” is necessary; second, they suggest that the
Secretary of State had the “discretion” under 3 V.S.A. §117 (the “Archive
Statute”) to enter into and hide behind the MOU despite the requirements
of 1 V.S.A. §§ 315 to 320 (the “Public Records Act”) and the case law
interpreting it; and third, they say that even if they are wrong
about the validity of their MOU, they do not need to meet their burden of
establishing an exemption to disclosure until some later date.
These arguments fail. As
explained below, (1) no “factual development” is necessary, since there are no
material facts in dispute; (2) the Archive Statute creates no “discretion” for
anyone, much less the Secretary of State, to contractually trump the
requirements of the Public Records Act; and (3) Defendants were supposed to
have met their burden of establishing executive privilege last year, not at
some future date of their own creation.
The simple and inescapable conclusion is that the public records, which
Defendants want to conceal, should be made available for public review right
now.
1. There Are No Factual Disputes Preventing Judgment On The
Pleadings.
This case is ready for judgment as
a matter of law under V.R.C.P. 12(c) because there are no material factual
disputes. See, e.g., 5A C.
Wright & A. Miller, Federal Practice and Procedure § 1367 (2d ed.
1990) (“A Rule 12(c) motion is designed to provide a means of disposing of
cases when the material facts are not in dispute and a judgment on the merits
can be achieved by focusing on the content of the pleadings and any facts of
which the court will take judicial notice.”).
Defendants dispute none of the material facts set forth in the
“Facts” section of our opening memorandum, which is hardly surprising, since
they are based entirely on the pleadings and the undisputed
exhibits. Nevertheless, in an effort to
delay this case (which this Court stated quite
clearly at our recent status conference that it would not tolerate), Defendants argue that there should be “factual
development” and the submission of “factual material” and “affidavits.” But why? There are no material facts in dispute and
Defendants do not (because they cannot) even suggest how any of this
unidentified, additional “factual material” might be remotely relevant. The only “disputed”
fact even referred to by Defendants appears in a footnote and is clearly not
material. Expedited
treatment under Rule 12(c) is appropriate, and judgment should immediately be
granted in favor of Plaintiff.
2). The MOU Is Legally Irrelevant.
As explained in our opening papers, the MOU is a stunning piece
of fiction masquerading as law. It is
legally irrelevant. It is a self-created
side-deal that Defendants suggest somehow overrules the requirements of the
Public Records Act and applicable Vermont Supreme Court precedent. And it clearly violates the separation of
powers, in that the executive branch has usurped the powers of the legislature
(by enacting its own laws) and ignored judicial precedent (by failing to comply
with Vermont Supreme Court precedent).
Even so, Defendants argue that entering into the MOU was authorized by
the Archive Statute and should be honored by this Court. Defendants are incorrect. Nowhere in that statute is there any such
authority. And the mere fact that
Defendants would even make such an argument is, to say the least, remarkable.
The Archive Statute creates “within the office of the Secretary
of State the division of Vermont
state archives” and provides that “[t]he secretary shall have legal custody of
the state’s archival records.” 3 V.S.A. § 117(b).
The statute also provides:
In
fulfilling the duties of the state archives program, the state archivist
shall...permit the public to inspect, examine, and study the archives, provided
that any record placed in the keeping of the office of the secretary of state
under special terms or conditions of law restricting their use shall be made
accessible only in accord with those terms and conditions.
3
V.S.A. § 117(g)(9).
Based solely on this proviso regarding “special terms and conditions of
law,” Defendants argue that the very person entrusted
with maintaining custody of the archival records and the very person who is
required to permit public inspection can, at the same time, unilaterally exercise
her “discretion” and write “law” by reclassifying public documents as secret
for any period of time she desires, including forever. Defendants essentially argue that their only
obligation of public disclosure as archivists is to reveal the documents that
they decide to reveal, and that their decision in that regard is “law” under 3
V.S.A. § 117(g)(9).
In other words, Defendants believe that “special terms and conditions of
law” is whatever they say it is. This is
absurd.
Indeed, if Defendants are correct, then the Secretary of State
could simply conceal the entire state archive.
Recognizing that their position necessarily leads to
this bizarre consequence, Defendants take great pains in their opposition
papers to paint a flattering picture of the MOU. They say it “results in important benefits to
the public” (at 2). They tell the story
of how the Secretary of State “exercised her authority in the manner she
concluded would serve the public interest to the greatest extent” (at 6) and
how the existence of executive privilege “has created
unique challenges for Vermont’s
secretaries of state and governors” (at 4) with which they have
“grappled.” However difficult the task
was of usurping the power of the legislature and the courts, and however
well-meaning the Secretary of State may or may not have been, is entirely
irrelevant as a matter of law. The fact
is, the Archive Statute – which predates the Public
Records Act – does not give any “broad discretion” or “broad authority” to the
Secretary of State to rewrite the Public Records act or overrule Vermont
Supreme Court precedent. It is thus no
surprise that Defendants cite to no controlling legal authority in support of
what they have done here.
The fact remains that Defendants have a specific burden to meet
under the Public Records Act and Vermont Supreme Court precedent. As set forth in our prior submission, the
Vermont Supreme Court years ago made Defendants’ burden crystal clear, and has
done so in a case which Defendants
themselves cite in their opposition papers:
In New
England Coalition [164 Vt. 337, 344 (1995)], we explained the process for
making a prima facie case of executive privilege in response to a request for
documents. The executive must specifically
identify the documents for which the privilege is claimed, and must explain why
the documents are protected by the
privilege. The claim must be supported
by an affidavit based on actual personal consideration by the responsible
official. Whether the Governor makes a
prima facie showing that the privilege applies to the requested
documents depends on the specificity of the claims supporting the privilege’s
assertion.
Dean, 816 A.2d at 475 (internal quotation marks and
citations omitted). From the creation
of the MOU claiming “executive privilege” for 146 boxes of documents, to the
deposit of those documents with the archivist, to Judicial Watch’s request for
the documents, to Judicial Watch’s appeal, and through the briefing on this
Rule 12(c) motion, Defendants have never even attempted
to meet their burden. And unlike
situations presenting good faith claims of executive privilege, Defendants have
not even identified the documents they are hiding. The requested
public documents should be disclosed.
3). Defendants’ Desperate Attempt to Delay Resolution Until
Summary Judgment Is Baseless, Makes No Sense And Must Be Rejected.
Defendants suggest that Rule 56 summary judgment
is the appropriate procedural juncture at which this Court should rule, as
opposed to Rule 12(c) judgment on the pleadings. Apart from the inconsistency in Defendants’
suggestion (recall that they earlier argued that the case should be set for
“trial,” not for summary judgment), the argument makes no sense, since at both
stages the court rules based on the lack of a material factual dispute. The only difference between Rule 12(c) and
Rule 56 is that, in the former, the court does not need to look beyond the
pleadings to rule as a matter of law.
Here, a 12(c) motion is appropriate because all of the material facts
are undisputed as revealed by the pleadings
and the undisputed exhibits; there is
therefore no need for further “factual development” or anything else to delay
resolution of this case.
The undisputed facts make clear
that Plaintiff followed the required procedures for requesting access to public
records, and that, in response to this request,
Defendants chose not to meet their burden of making a prima facie showing of
executive or any other privilege. See
Dean, 816 A.2d at 475. Those are the facts. Accordingly, as a matter of law, the
documents should be released to the public.
CONCLUSION
For all of the foregoing reasons, and for the
reasons set forth in Judicial Watch’s opening papers, Judicial Watch’s motion
for judgment on the pleadings pursuant to V.R.C.P. 12(c) should be granted,
including such other and further legal and equitable relief as this Court deems
just and proper. In addition, Judicial
Watch should be awarded its costs and reasonable attorneys’ fees incurred in
bringing this action in accordance with 1 V.S.A. § 319(d).
Dated: Burlington,
Vermont
February 12, 2004
Paul
J. Orfanedes, Esq.
Judicial Watch, Inc.
501
School Street, S.W., Suite 725
Washington,
DC 20024
(202)
646-5172
and
___________________________________
Andrew D. Manitsky, Esq.
Gravel and Shea
76 St. Paul Street, P. O. Box 369
Burlington, VT 05402-0369
(802) 658-0220
For Plaintiff
It would appear that part of Defendants’ strategy is
to build delay into a process that the Legislature has determined should be
given priority on the court calendar and handled as expeditiously as
possible. See 1 V.S.A. §
319(b). While we will not speculate here
as to the reasons for this strategy, it is clear that this Court should not
unwittingly contribute to its implementation.
In footnote 1 on page 10 of their Opposition,
Defendants mention an assertion to which they say they will someday provide a
“response,” viz., our characterization of the MOU as “secretly negotiated.” However intuitively accurate
this characterization may be, it is clearly not a material fact, and
thus does not appear in the “Facts” section of our memorandum. After all, whether Defendants negotiated and signed their MOU in a basement backroom or on the State House lawn
is hardly relevant under the Public Records Act or even the Archive Statute (neither of which refers to or contemplates an MOU in the
first place). The single legal question
at issue on this motion – whether Defendants have met their burden of
establishing an exemption to disclosure under the Public Records Act – does not
depend on where Defendants created their MOU
or whether they whispered during their negotiations.
Defendants
concede that 1 V.S.A. § 319(b) provides for “expedited” treatment, but they assert that it “refers to expediting a case by
assigning it for ‘trial,’ a procedure that is plainly inconsistent with
judgment on the pleadings.” Opposition
at 11-12. The obvious intent of the
legislature is to encourage a prompt disposition of a Public Records Act
case. That the statute mentions the word
“trial” does not mean that other dispositive
procedural devices are unavailable.
Indeed, right the word “trial,” the statute continues: “or for argument
at the earliest practicable date and expedited in every way.” (Emphasis added.) In view of this plain language, Defendants’
apparent position – that a Rule 12(c) motion is somehow inappropriate in this
case – is beyond meritless. Indeed, if a Rule 12(c) motion is appropriate
in a “garden variety” litigation, it is a fortiori
appropriate in a case where expedited treatment is statutorily mandated.
Instead, Defendants argue, based solely on an
erroneous citation to New England Coalition, that executive privilege is
ordinarily “unlimited” in duration, and then arrogantly boast that, if the
Secretary of State had declined to help the public with agreements like the
MOU, then we would never ever get to see these public documents at all. See Opposition at 6 (these “agreements
have ensured that the public will eventually obtain access to documents that
might never be available for inspection because of the otherwise unlimited duration of executive privilege.).”
Arrogance (and relevant case law) aside, the citation is erroneous
because, in New England Coalition, the claim of executive privilege was
upheld because, unlike here, the defendants actually met their burden of
establishing executive privilege by submitting an affidavit that made out a
prima facie case. It was not based on
some made-up claim of “discretion” under the Archives Statute. Rather, it was based on the defendants having
met the burden of establishing privilege via the affidavit of “Volz, as a high-ranking official who was intimately
involved with the preparation of the [documents]...based on Volz’s
personal knowledge of the documents, and [which] describe[d] those documents
with particularity.” 670
A.2d at 820. Defendants here still have not met this burden and, again,
any belated attempt is too little, too late.
It also bears mentioning that, despite Defendants’
rhetoric to the contrary, the timing issue argued and addressed in that case
was not post-term governor papers, but post-decision papers. In that case, the plaintiffs had argued that,
following FOIA, the only papers protected by executive privilege are those created before a governor’s decision on an issue has been made. The Vermont Supreme Court rejected such a bright-line rule. That
issue is not in play in this case, or in this motion; thus, Defendants’
argument in that regard is off base.
In fact, as
previously noted, Defendants should also have made this showing when
the Governor’s official correspondence was initially deposited with the state archive. See
3 V.S.A. § 4(a) (requiring provision of “itemized list” of Governor’s official
correspondence). Again, they chose not
to do so.